So the leadership of the Law Society of Upper Canada wants to hold a vote this coming Thursday on changing the name of the organization to the more contemporary "Law Society of Ontario." The pitch is that LSO will supposedly be much more palatable to the public than LSUC. For my part, as someone who remains a proud member of the Law Society of Upper Canada, I think they could not be more wrong.
The concern — which is entirely legitimate — is that the law society, and by implication the rule of law, is disconnected from the public whose interests it is intended to serve. No one who believes in the connection between a robust legal profession and the common weal can gainsay the underlying worry of the law society's leadership.
They are right to be anxious about access to justice — for that is what is really at play here. The law society's duty — which it owes to us all — is to protect the public. And it just can't do that if it is perceived by the public to be irrelevant. So huzzah to the treasurer and benchers for viewing public engagement as a top organizational priority.
Unfortunately, changing the name isn't going to accomplish any of that. It is nothing more than superficial window dressing that won't alter how the public feels about us one iota. But what it will do is cause us to lose some of our sense of professional identity. For in a precedent-based system such as the common law, it is conceptually impossible to understand the present without having a sense of the past.
"Changing your name doesn’t turn your back on your history," Paul Schabas, LSUC treasurer, was quoted as saying in an article in the National Post. But, with respect, that's exactly what this proposal is. When supporters proclaim that we need to change because the current name is "anachronistic" or "backwards looking" — or worst of all "colonial" — they are all reflecting a belief that our history is something of which to be ashamed, and that it needs to be erased.
One wishes that those pushing the name change would be honest about that, or at least that they'd play the chess game out a few moves. Logically, the benchers in favour of change should follow through on their premise and, as a next step, sell Osgoode Hall and move into a modern office tower. If any part of the society is redolent with history in an in-your-face, let's-revel-in-the-past manner, it's that Georgian building on Queen St. in downtown Toronto. So if we're going to present a modern face, Osgoode Hall presumably needs to go, too. And given the primeness of the real estate, perhaps the benchers could invest the proceeds of the sale in an access-to-justice fund. What more fitting way to signal our Great Leap Forward (irony intended) than that?
Our history is like all history. It is the continuous story of many generations of flawed people. Some parts of it engender retrospective pride, others shame. No group of humans can have an unblemished historical record. By definition, that would be an impossibility — for the fact that as individuals, none of us has an unblemished character. If purity is the requirement, then we should never commemorate anything human again.
And as for the taint of "colonialism," if that is to be the litmus test, then we're going to have to toss out a lot of other things, too. Indeed, by rights, we should probably get rid of the whole common law system itself, given that that came from our erstwhile colonial masters. And while we're at it, we'll need to expunge the system of parliamentary government, given that we inherited it — along with the rest of the colonial baggage of the Glorious Revolution of 1688 (including, by the way, an independent judiciary).
In the National Post piece, Schabas was quoted as saying: "What our research shows us is our name is a barrier to connecting with the public because the term Upper Canada is an anachronistic term and we’re told it doesn’t reflect the geographical area. Many people don’t know what Upper Canada is, or was."
It's true that most Ontarians today don't reflexively identify with Upper Canada as a place. So, too, would most ordinary citizens assume that the "treasurer" is the person who keeps the books. But that gives us a teachable moment. It gives us the chance to tell the story (and yes, there is an elevator pitch version of it) of how the rule of law in English Canada was not plopped down fully formed from Mount Olympus but rather evolved in our own unique way. And it might be a source of wonder to those who might assume that all we do as lawyers is slavishly imitate what they do in England, that Ontario's Law Society is actually older than the English one. Heaven forbid, that might even be viewed as a source of pride to some.
Any lawyer will tell you that how you shape the question will significantly shape the answer. I don't know what the public was asked about their understanding of Upper Canada or how many members of the public were asked it, but I'd be surprised if the results had been different. But I'd also bet my pension on the proposition that not one Canadian in a hundred has a real sense of what the Privy Council Office is or does or how the Black Rod figures into the scheme of things in the legislative branch of government. Many of us have problems with how our governments work, but the fact that we use historical titles for some of the offices is hardly the nub of them. If the law society has a problem of disconnectedness, then let's recognize the real problems — cost, speed and a mismatch of demand and supply. If the law society tackles those issues, then we'll seem truly relevant once more.